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Amicus Brief on Major Questions Doctrine in Fifth Circuit Case Over DOL’s 2022 Investment Duties Rule

We filed an amicus brief in the Fifth Circuit arguing that the lower court correctly concluded the Department of Labor's 2022 Investment Duties Rule does not trigger the major questions doctrine because past regulatory practice demonstrated the case was not extraordinary enough to trigger the doctrine.

Our brief explains that parties often invoke the major questions doctrine when they oppose an agency’s action without closely following the analysis in West Virginia v. EPA, 142 S. Ct. 2587 (2022), or the Supreme Court’s other recent cases applying the doctrine. Here, for example, plaintiffs argued that the major questions doctrine applied to the Rule because, they asserted, it was economically and politically significant.

Our brief explains that, while economic and political significance may be necessary conditions for triggering the major questions doctrine, they have never been sufficient. Rather, West Virginia explains that cases “extraordinary” enough to trigger the doctrine have been ones “in which the ‘history and the breadth of the authority that [the agency] has asserted,’ and the ‘economic and political significance’ of that assertion, provide a reason to hesitate.” The Supreme Court repeated the same formulation last year in Biden v. Nebraska, 143 S. Ct. 2355, 2372 (2023). Both opinions also followed the same order of analysis—addressing first history, then breadth, then economic and political significance. Both opinions indicate that these three factors are conjunctive requirements—each necessary but none alone sufficient to trigger the doctrine.

Following that reasoning, the lower court here correctly rejected application of the major questions doctrine, finding that history alone demonstrated the 2022 Investment Duties Rule was analogous to past exercises of DOL authority under ERISA.